Thursday, November 6, 2014

Should the Armed Forces (Special Powers) Act be repealed or amended?

Two teenaged Kashmiri boys are dead, and two others are in hospital with critical injuries. Soldiers at a checkpoint fired at them, with differing versions of how it unfolded. So it is not a whodunit. Rather, the question is why they do it. Why do soldiers patrolling civilian areas in Kashmir shoot to kill, so easily? The answer, in five letters, is AFSPA. The immunity that the Army gets under the Armed Forces (Special Powers) Act gives it the impunity to use what should be the last option first. AFPSA allows soldiers to “fire upon or otherwise use force, even to the causing of death” against those violating the law; it also says “no prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government”. Had this protective umbrella not been provided, it is possible to imagine that the soldiers would have adopted less dire methods to stop the car; perhaps they would have shot at the tyres to immobilise the vehicle. Defence Minister Arun Jaitley and the Army have promised a swift enquiry. But as Kashmiris know only too well, justice is uncertain for the victims. In the Pathribal case, for instance, the five Rashtriya Rifles officers named by the CBI challenged the charge sheet in the courts, and ultimately the Supreme Court upheld their case, directing the Army to either permit prosecution or court-martial them. The Army simply chose the latter option. In January, after 13 years of legal battles, the military court closed the case against them, concluding that “the evidence recorded could not establish a prima facie case against any of the accused.” The Jeevan Reddy Committee recommended AFSPA be repealed and some of its provisions incorporated in other laws. Many in the civilian establishment see it as an obstacle to efforts to normalise the “disturbed” areas where it is now in force and at least want it amended. The Army dismisses all such suggestions. But Monday’s incident makes it clear that AFSPA cannot continue, certainly not in its present form.